Notre Dame Law Review
Volume 12 | Issue 1
11-1-1936
Federal Control of Defamation by Radio
Joseph E. Keller
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Joseph E. Keller, Federal Control of Defamation by Radio, 12 Notre Dame L. Rev. 15 (1936).
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Article 3
FEDERAL CONTROL OF DEFAMATION BY RADIO
INTRODUCTION
"One venomed word
That struck its poison-darted blow
In craven whispers, hushed and low
And yet the wide world heard."
-Anonymous.
Federal control of radio has, since its inception, been considered a scientific and practical necessity. Since the Act of
June 24, 1910, which was the first federal law having any
relation to radio communication, Congress has steadfastly
continued to exercise a powerful regulatory control in this
particular field. Realizing that to suggest further assumption
by the central authority of powers which seem to be inherently the property rights of the several states is not popular in this day, it is with little hesitation that we undertake
to suggest a further and vital federal control of radio in the
broad field of defamation. Our purpose shall be to show that
such legislation is an immediate necessity and that it should,
and must, come before we encounter hopeless confusion in
the field of defamation by radio. We must not further add
to the chaos which already exists here. The purpose of all
radio legislation is to prevent chaos by properly regulating
the use of the'ether and the use of the ether is a question
involving the strict public policy.1
Our thesis is not that the states can not regulate defamation by radio but rather that the Federal Government has
the authority and the duty to assume this control. Recent
events have served to intensify the need for regulation in
this particular field and almost daily we have added proof
1 Journal Company v. Federal Radio Commission, 48 Fed. (2d) 461 (App.
D. C. 1931).
NOTRE DAME LAWYER
of the necessity for such regulation. Federal control of defamation by radio is no longer a question for ingenious disputation. State legislatures have been wrestling with the
problem of control of defamation by radio and have been
struggling valiantly to determine upon a method of correcting the evils which undeniably exist. The courts, both state
and federal, have undertaken to determine the question in a
number of cases which are to be discussed in detail in this
paper. However, none of them has attained the degree of
finality and authority which is necessary if the problem is
to be completely solved. "The past two months have witnessed an unusual number of proposals in the legislatures of
the various states to extend the libel and slander laws to
cover specifically the publication of defamatory statements
by radio." 2 There has been, however, no serious attempt
either upon the part of the state legislatures or the Federal
Government to assume control definitely in this particular
field. Our purpose, therefore, is to show the need for such
regulation, to show that the states have not, and can not,
exercise control properly in this field, to show that the Federal Government can, and must, exercise control in this particular field, to demonstrate that such federal control will
not be a threat to freedom of speech nor will it lead to
vicious or even apparent censorship, nor that it will be a
burden upon the broadcaster or the person using the broadcasting facilities, and finally that the public interest could
best be served by federal control of defamation by radio.
While no attempt will be made to submit a proposed draft
for such legislation-since to do so is not within the province
of this article, nevertheless, an endeavor will be made to set
forth the paramount issues which should be covered in such
legislation.
2 Dr. Henry A. Bellows, Chairman of the Legislative Committee of the
National Association of Broadcasters, writing in the March 15, 1935, issue of
"Broadcasting."
FEDERAL CONTROL OF DEFAMATION BY RADIO
17
The First Amendment to the United States Constitution
provides that,
"Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably
to assemble and to petition the Government for a redress of grievances."
Let us approach this subject with an open mind and put
aside definitely and resolutely the thought that if you assume federal control in this particular field you will in any
way abridge freedom of speech which all true Americans
hold so dear. Rather, let us realize that unless we do assume
to recognize the problem here and to solve it, that the very
principles which we hold so dear will be devastated by conditions which already exist and which will mount increasingly if some control is not forthcoming.
\
"The radio as a means of communication has such tremendous potential possibilities that one must be wary of any
attempt to limit or curb its natural development as an instrumentality to further education, to spread knowleidge and
to promote business
....
Of greater importance is the pro-
tection of the rights of the people... ." This statement made
by Honorable N. S. Levine, Judge of the Court of General
Sessions of New York County, New York, on November 7,
1932,1 eloquently expresses the problem as we view it today.
Again, it was stated by Secretary Hoover' that,
"Through the policies that we have established the Government,
and therefore the people, have today the control of the channels
through the ether just as we have control of our channels of navigation; but outside of this fundamental reservation, radio activities are
largely free. We will maintain them free -free
of monopoly, free in
program, and free in speech-but we must also maintain them free of
malice and unwholesomeness."
3 People v. International Broadcasting Corp., 143 N. Y. Misc. 122, 255 N. Y.
S. 349 (1931).
4
Reported in
JOURNAL OF
RADIO LAW, Vol. 1, p. 468, as a quotation from
Secretary Hoover's address to the Third National Radio Conference (held in
1934).
NOTRE DAME LAWYER
Secretary Hoover has here given expression to a popular
theory that the Government owns the ether or the channels
in the ether and that it may exclude all others at will. This
idea has long been a popular belief in Congress also.' In
1926 the preamble of a bill introduced into the House declared that "the ether is the 'inalienable possession of the
people thereof.' "6 While scientists disagree even as to the
existence of the ether7 which our legislators have claimed so
unconcernedly, nevertheless, such discussion demonstrates
.the breadth of the scope of the regulation as well as the popular conception of the right of Congress to regulate the
commerce "upon these intangible, inexplainable highways
of the sky."
Radio 'broadcasting, as now developed, constitutes the
most powerful agency for defamation the world has ever
seen.' The radio "is a young and great institution and one
must be lenient toward it as to every other manifestation of
crude but creative and developing youth. The radio is growing up. It has already given mankind many blessings, and
it will give more. But it needs to learn from experience.
Years ago political spell-binders, who sought to help themselves by blacking their rival's character, learned that such
efforts at a street corner rally would instantly be met by a
challenge by answering hecklers, or by persons who rose to
make utterly serious, truthful denials of the defamation just
spoken against a fellowman. At least, it took nerve to face
this risk. The radio speaker, on the other hand, stands in a
well-guarded room with all of civilized society, laws and
police force to protect him from any interruption, no matter
how false or uncivilized his attacks on other human beings
may be." 9
5
57 CONG. Rwc. 5500, 12351 (1926); 68 CONG. REc. 2588 (1927).
6 Interim Report on Radio Legislation (1926) 12 A. B. A. J. 848.
7
EDDINGION, NATURE OF PHysicAL WoRz
(1929)
31.
8 Vold, Defamation by Radio, 2 JouR. RtAro LAW 673, 683.
9 Editorial, Boston Transcript, November 17, 1934.
FEDERAL CONTROL OF DEFAMATION BY RADIO
19
Statements are being made over the radio constantly
which no newspaper could print even if it so desired. Yet
these statements continue to be made oftentimes by irresponsible persons and defamation which they speak is cast
out upon the highways of the sky to be heard by millions
of listeners. Listeners have a way of believing that whatever is said over the radio has the benediction of the Federal
Government, or else why is it placed upon the highways of
the ether? The permanence of the written record over the
evanescent spoken word has been, we believe, exaggerated.
We Americans have become in the last twenty-five years
decidedly ear-minded, as the salesman of advertising time
on the radio will eloquently convince you. The growing feeling, therefore, that defamation by radio is as heinous as
written defamation is not to be denied. Publication of defamatory utterances by radio ought properly to be regarded
as an equivalent to libel. Whether regarded from the standpoint of the deliberation involved, the extent of diffusion
achieved, or the amount of damage to reputation inflicted,
it is in each aspect clear that defamation by radio is, if anything, more provocative of mischief than is written defamation. No wonder then that we have the statement:
"Radio's unexpected, unprecedented usefulness as a carrier of information and entertainment is still a cause of wonder and confusion.
Many seemingly settled institutions of life have come within its influence. Education, the press, the church, the theatre, and to some
extent public and home life have felt its transforming touch. In a period
of ten years broadcasting has appeared and developed beyond a stage
of convenient control. Is it any wonder that our attempts to deal
with it have led to confusion and disappointment!" 10
Just as the difference in form when writing and printing
first came into general use, following upon the invention of
the printing press, was seized upon as the occasion for enforcing a wider liability for written defamation than was
available directly under the old narrowly confined slander
10 Address ("Our Stake in the Ether") by Bethuel M. Webster, Jr., at New
York University, April 10, 1931.
NOTRE DAME LAWYER
precedents, 1 so also the difference in form between writing
and broadcasting could and should be seized upon to further
extend the protection of the public from unwarranted defamation by radio. The deliberation involved being greater,
the diffusion being wider, and the damage being heavier
were cited as reasons for enforcing a wider liability for written defamation.' 2 How much greater then the reason for
further extending the law of defamation to cover radio.
But it is our assumption here that defamation by radio
is not and can not be controlled by the states. Indeed, at
least four states have already extended by statute the law
of defamation to radio.'"
That the problem has also receivevd attention in foreign
countries is illustrated by the cases decided in Australia, 4
in France, 5 and in Great Britain.'"
We have had an increasingly large number of state courts
passing upon the question in recent months also, which cases
are to be discussed in detail later in this paper. Our problem
is precisely this: If present legislation by the states in this
field is permitted to continue, we will have forty-eight different state laws, each with a different notion of whether
defamation by radio is libel or slander; each setting up perhaps civil liability or criminal liability, or both; each having
various concepts of where the defamation occurred, whether
in the place where it was spoken or where it was heard, or
both; or whether the defamation was based upon the law
11
See 8 HOLDSWORTH, HISTORY OF ENGLISH LAW 366.
12 "The distinction between slander and libel grew up in English law early
in the 17th Century. Judges, frightened as it were, by the power of the printed
word, decided that printed slander should be considered greater in effect than oral
slander. From it grew the principle that a thing may be libel when written which
would not be slander if spoken." DAvis, RADIo LAW (2nd ed. 1930) 101.
§
13 CAL. PENAL CODE (Deering, 1931) § 258; ILT. RaV. STAT.
567 (1); N. D. LAWS (1929) c. 117; ORE. LAWS (1931) c. 366.
(1935)
c. 38,
14 Meldrum v. Australian Broadcasting Co. [19331 Vict. L. Rep. 425. See 7
AUSTR. L. J. 257-262.
15
16
Tribunal Correctionel de la Seine (12s Chambre) February 1, 1929, p. 57.
See 70 SOL. J. 613.
FEDERAL CONTROL OF DEFAMATION BY RADIO
21
of defamation or upon the law of negligence, with the added
possibility of utter confusion and chaos in satisfactorily determining actions between citizens of different states. How
can such a situation help but lead us to the point of demanding Federal regulation of defamation by radio? We will approach the situation where it will appear that Congress "is
trying to import all of Europe's radio afflictions, so far as
broadcasting is concerned, into the United States by giving
too much recognition of the rights of states ....
Whatever
language it chooses to use to express its power, even if it
be a declaration that it owns the ether, I trust that it will
always preserve to the Federal Government the most farreaching control of radio communication that the Constitution permits." 11
In the same article this writer admits that a surprisingly
large amount of radio legislation is to be found in the statute
books of the several states and in the ordinances of cities,
towns, and villages.
Faced with an intolerable situation such as we have outlined above, how would it be possible for the chain broadcaster to be able to determine in any possible way whether
a particular item to be sent out over the chain would be
defamatory or not? What would be defamatory in one state
might not be defamatory in another. Indeed, if the present
situation continues to enlarge we might be faced with the
hopeless situation of broadcasting defamatory matter in a
particular city which might not be defamatory within the
law in the state, of which such city is a political subdivision.
Such a condition would be utterly hopeless and inexcusable
in view of the fact that the Federal Government possesses
the authority necessary not to correct such evils as they
exist but to prevent them by adequate legislation here and
now.
17
1931.
Louis G. Caldwel, CATHoLic UW&RsY RADro LAW BuLL-n%, August,
NOTRE DAME LAWYER
Radio broadcasting is a new scientific wonder and challenges our Federal Government to new methods of control.
"Radio has brought to the courts and before our legislative
bodies new issues on the law of slander." 18
The power of radio to sway public opinion and thought
is amply illustrated by the facts surrounding the recent
lynching of the alleged kidnapers at San Jose, California,
graphically
described by the Reverend Cornelius D. Deeney. 19
Legislation seeking to control rash statements made over
the radio will undoubtedly serve as a deterrent to those who
would pour into the microphone wild statements for which
later retraction is unsatisfactory, if not impossible. The
masters of invective who have arisen within recent months
in political debates presage a new danger in radio broadcasting which already stands as a challenge to the Federal
Government. These widely discussed debates already stand
as a monster Frankenstein of the radio industry which have
struck fear into the hearts of broadcasters and which present problems which even now thoughful executives are
struggling frantically to solve. "Political Bundling," "Cream
Puff General," "Twin Termites," and "Political Padre" are
terms which must inevitably lead to stronger language
which, in turn, must and will bear more than a tinge of defamation. Stranger and stronger language than this has been
held to be defamatory. R. F. Wood, in a speech in behalf
of W. M. Stebbins, candidate for nomination for the office
of United States senator, called C. A. Sorensen, candidate
for reelection as attorney-general of Nebraska, a "nonbeliever, an irreligious libertine, a madman and a fool," and suggested by innuendo that he had other faults, such as being
a grafter and a racketeer. This language was held to be deCodel, Radio and Its Future, HARPF s (1930).
19 Hearings before Federal Communications Commission pursuant to Section
307 (c), Communications Act of 1934, held at Washington, D. C., October I to
November 12, 1934.
18
FEDERAL CONTROL OF DEFAMATION BY RADIO
23
famatory.2" It is pale and decidedly weak language when
compared to the' raucous bellowings of radio demagogues
which have come thundering into millions of American
homes via the airwaves in recent weeks!
The power and speed of radio are so great and retraction
later is so unsatisfactory as to intensify further the need for
such legislation. Recent statistics show that there are
25,551,569 radio receiving-sets in 21,455,799 homes in the
United States and the total number of radio listeners over
ten years of age is placed at 70,804,157.21
Never in the history of the world has so vast an audience
been possible upon any occasion. Society, it may be argued,
has laws of libel designed to punish defamatory attacks when
they are launched without warrant of fact. But in broadcasting, do we not have far greater difficulties in establishing a libel by radio than we do by the printed word? To
establish the defamation spoken by radio, witnesses must
be sought out and consulted and their testimony must be
cross-checked and collated. The defense counsel might easily
create doubt that the alleged words were spoken in defamation by radio, whereas the incontrovertible evidence of the
printed word is always available in the ordinary case of libel.
Again, we have difficulties in proving that a person alone
in a studio uttered words of defamation which were heard
by one or more people. There may be no one in the room
with him, but millions may hear him defame another. Can
the person be identified by the sound of his voice where there
are no witnesses on the set? 22 Will experts testify that a
radio receiving-set is so delicate and so true in reproduction
that one can distinguish the characteristics of another's
Sorensen v. Wood, 243 N. W. 82 (Neb. 1932).
21 Statistics released by the Columbia Broadcasti.g System in cooperation
with the statistical staffs of Dr. Daniel Starch and of the McGraw-Hill Publications Co.
20
22 Van Allen, State and Municipal Regulation of Radio, 1 Joun. RADIo LAW,
at p. 40.
NOTRE DAME LAWYER
speech and will this remove all doubt that he and not another was the guilty person? We have difficulties enough
here without the added burden of chaotic state legislation
on the subject.
Let us consider, also, whether the person at the microphone spoke without notes or memoranda or writing or read
from a written statement of which he is the author. If you
sue for slander, can you sustain the action on the ground
that it was oral as between the person broadcasting and the
person who heard it, even though the spoken word was derived from a written document; or, conversely, can we sustain an action for libel, if the words were derived from a
written document, or are we coming into a field where, if
injury is alleged, we must base it on both libel and slander
in order to avoid a dismissal? The legislation on the subject is by no means uniform to date, although cases have
shown a rather marked consistency in the United States in
holding that broadcasting is libel and not slander.2" More
is to be said later on this interesting phase of the subject.
At this poiit, we deem it only fair to state emphatically
that this recital of the possibilities for defamation by radio
in no way reflects upon the broadcasters of this nation; that
is, upon those who are operating broadcasting stations today.
The vast majority of them are public servants of the highest order. They have obtained their licenses upon the strict
condition that they will so operate their stations so as to
serve "public interest, convenience and necessity." 24 Defamation by radio and the control thereof is as much a problem for the broadcaster as it is for the general public. The
broadcaster is not unmindful of the tremendous responsibility attaching to the ownership and operation of a broadcasting station. Broadcasters are cognizant of the fact that
23 Sorenson v. Wood, op. cit. supra note 20; Coffey v. Midland Broadcasting Co., 8 Fed. Supp. 889 (W. D. Mo. 1934).
24 Communications Act of 1934, § § 303 (f), 307 (b), 309 (a).
FEDERAL CONTROL OF DEFAMATION BY RADIO
25
the Federal Government has given them a valuable license
and that they are entitled to use but not abuse their licenses
and that they have to accept the responsibilities which possession of the license -includes. The National Association of
Broadcasters has undertaken to care for this problem by
specific provisions in their Code of Ethics,25 already widely
publicized. The language in their Code which is pertinent
is as follows:
"Care should be taken to prevent the broadcasting of statements
derogatory to other stations, to individuals, or to competing products
or services except where the law specifically provides that the station
has no right of censorship."
Doubtless, their covenant could have been strengthened.
Doubtless, needed legislation, if enacted, would make their
covenant unnecessary. But at any rate it is a start, an indication that the broadcaster is not entirely unaware of his
obligations as a broadcaster.
HISTORICAL BACKGROUND
It will prove helpful for the purpose of our discussion
here to have, "a preliminary review of the codes of those
law-makers who in the beginnings of society united the law
with their religion and morals" 26 and will prove of assistance in ant examination of the present state of the law of
defamation in general. From the time of the old Mosaic
law, slander was a serious offense. It is not difficult to trace
a swiftly developing body of law on this subject down
through the laws of ancient Egypt, the laws of the Athenians,
the ancient Roman Law of the Twelve Tables, the laws of
Sylla, the Cornelian law, the Theodosian code, the Institutes
of Justinian, the edicts of Valentinian and Valens, the English laws under Alfred and Edgar and the Norman Kings,
the Statute of Westminster, the Statutes of Richard II, the
libels of the Star Chamber and so on down to more modern
25
26
Adopted March 25, 1929, at Washington, D. C.
NWELL ox DEFAmATioN (2nd ed.) 1, 2.
NOTRE DAME LAWYER
days. Thus we find that we have the same authority for the
law of libel that we have for the most important maxims of
the common law. The American law, always identical with
the English law, has proceeded along definite lines from the
decision in the famous case of The King v. Zenger,27 tried
in New York in August, 1735.
Defamation is generally understood to mean a false publication calculated to bring a person. into disrepute. By the
common law, it has been divided into two classes; written
defamation, or libel; and oral defamation, or slander. Libel
is defamation published by means of writing, printing pictures, images or anything that is the object of signs. Slander
is defamation without legal excuse, published orally, by
words spoken, being the object of the sense of hearing. Both
libel and slander are but different methods of accomplishing
the same wrong, differing mainly in the manner of publication.28 That defamation by radio is more logically libel than
slander seems a sane conclusion inasmuch as publication, in
the light of the earlier determinations on this subject, was
never meant to encompass publication by radio. We believe
publication by radio, for all intents and purposes, gives rise
to an action for libel as much as does any type of publication held to be libel.
Innumerable other definitions of libel and slander have
been devised by writers in all fields of the law. To repeat
them here is not within the scope of this writing. Publication
is the communication of the defamatory matter to some
third person or persons. Radio is an agency which makes
possible the widest kind of communication on a scale not
previously even imagined.
The law of defamation provides for punishing a criminal
libel at the same time it assures civil responsibility. The
27
CHANDLER'S AmmcAN
28
COOLEY ox TORTS (1st ed.) 193.
CRIMIXNAL TRIALS
205.
FEDERAL CONTROL OF DEFAMATION BY RADIO
27
criminal libel has been defined as including any publication
which has a tendency to disturb the public peace or good order of society.29
"It is clearly necessary that there should be a criminal
as well as a civil remedy for libel for the following reasons:
(1) The evil done by libel is so extensive, the example so
pernicious, that it is desirable that they should be repressed
for the public good. Slanders do less mischief as a rule, are
not permanent, and are more easily forgotten; their evil
influence is not so widely diffused. (2) Many libellers are
penniless, and a civil action has no terrors for them. The
plaintiff will never get his damages. In fact, the proprietor
of many a low newspaper rather rejoices at the prospect of
a civil action for libel being brought against him. He regards
it as a gratuitous advertisement for his paper." 11
Publication of defamatory utterances by radio many times
multiplies the diffusion and the possible damage beyond
what could be attained in those respects by any written publication. Every substantial reason commonly cited for imposing a broader liability for libel than for slander is therefore at hand to dictate that publication of defamatory utterances by radio must be regarded as equivalent to libel."'
20
30
81
WHARTON'S CRmNAL, LAW (12th ed.) § 1931.
ODGERS ON LIBEL AND SANDER (9th ed) 7.
"It can readily be seen that the California Legislature thought that with
the development of radio, slander should be punished criminally, as it is now
civilly, and had in mind the fact that many English authorities had deprecated
the favoritism which slander had enjoyed for centuries. The basis for the punishment of libel as a crime is the tendency to breach the peace. If this is at all
a valid ground for state interferences, the danger for such breach is greater now
from radio than from the printed word. One can influence people with the spoken
word in a way in which it cannot be done by the printed." DAVIS, RADIO LAW
(2nd ed. 1930) 102.
"So far as concerns defamatory matter, the common law distinctions between
libel and slander (both as to criminal and civil responsibility) seem to be based
upon the more permanent nature and the wider dissemination of libelous statements. The invention of radio broadcasting has created a means of giving to
oral defamatory utterances a wideness of circulation greater than that now generally given to written defamations." DAVIS, RArno LAW (2nd ed. 1930) 69.
"Libel is more heavily punished than slander, because of its greater possibility
of harm and the greater deliberateness on the part of the perpetrator. When the
NOTRE DAME LAWYER
It is not to be imagined that the First Amendment to the
Federal Constitution is a guarantee of one's right to defame another. There is as wide a distinction here as there
is between freedom of the press and the right to print libellous statements without incurring either civil or criminal
responsibility. Impeaching a man's honesty, integrity, virtue
or reputation and exposing him to public hatred, contempt,
ridicule or financial injury is hardly to be held to be within
the protective confines of our so-called "bill of rights." That
is making freedom of speech and of the press a license to
commit a positive wrong. Such was not the spirit of those
who framed our Constitution as even a cursory examination
of the constitutional debates will reveal. Of course, this
Amendment is not to be forgotten in the exercise of control
over broadcasting under the so-called "Commerce Clause"
of the Federal Constitution.32 It serves there to operate as
a check upon the abuse of authority under the Commerce
Clause. But federal control of defamation by radio is not to
be considered-as an abuse of this authority. We propose to
demonstrate that it is entirely within the authority of Congress to legislate in this field under this constitutional provision as well as under the so-called federal "police power."
COMMERCE CLAUSE
The Commerce Clause of the Federal Constitution has
had an interesting history. It has been regarded as a prodefamation is by radio, may not the deliberation of the actor be as great as
if the tort or crime is perpetrated through a newspaper and may not the harm
be even greater, reaching, as the broadcasting may, through chain arrangements
a far greater audience than the circulation of any newspaper? . . . On the mischief side, radio defamation certainly would seem to be more like libel than like
slander." ZOLLMANN, LAW OF THE A3R 125.
"If, indeed, the distinction between libel and slander truly lies in the fact that
the former is more likely to cause mischief than the other, then it might seriously
be argued that broadcasting defamatory statements constitutes a libel and not a
slander. The time would indeed appear to be now ripe for the abolition of this
distinction altogether." 70 SOL. JouR. 613.
32 U. S. Const., Art. I, §§ 8 (3), 8 (18).
FEDERAL CONTROL OF DEFAMATION BY RADIO
29
tection to the commerce of the individual states and was
treated with such jealous respect by each state that for more
than thirty years following the adoption of the Constitution
no question involving the Commerce Clause reached the
Supreme Court for adjudication. The tendency of the states
during this period was to encroach upon the powers of Congress; and at no time was it seriously charged that Congress sought by legislation to interfere with the rights of
the individual states, with the exception that some of the
states hesitated to conform strictly to the provisions of the
Constitution with regard to national revenue.33
There followed, then, development in population, territory,
and inventive genius. With the advent of the steamboat, the
steam engine, cotton gin, telegraph, sewing machine, improved farm machinery, and many other mechanical devices of practical use our frontiers were no longer frontiers.
Our Nation became the envy of the commercial world and
this commercial development could not have occurred but
for the harmonizing effect of the Commerce Clause upon
the commercial relations among the states.
That harmonizing effect is not absent today. It is available and has been applied to paramount features of federal
control of communications. It is also available for extending
federal regulation to defamation by radio in order to accomplish, as is the early history of the Commerce Clause, a
harmonizing effect which cannot be obtained in any other
way. Certainly the states were more jealous of their powers
and rights at the time that Chief Justice Marshall, in 1824,
in the case of Gibbons v. Ogden, 4 handed down the decision
of the United States Supreme Court stating that the Commerce Clause comprehends every species of commercial intercourse between the United States and foreign nations and
33 Vaught, The Commerce Clause of the Constitution (1935) 21 A. B. A. J.
153, 154.
34 9 Wheat. 1 (1824).
NOTRE DAME LAWYER
among the several states. It made possible commercial relations among the various states without the friction which
had theretofore existed.
Raising the public cry that the federal branch of the government is encroaching more and more upon state powers
is not new at this time, for Thomas Jefferson, on December
26, 1825, wrote to his friend Giles,
"I see, as you do, and with the deepest affliction, the rapid strides
with which the federal branch of our government is advancing toward
the usurpation of all the rights reserved to the states and the consolidation in itself of all powers, foreign and domestic; and that, too,
by construction which, if legitimate, leaves no limit to their power.
Take together the decisions of the federal court, the doctrines of the
President and the misconstruction of the Constitution compact acted
on by the legislature of the federal branch, and it is but too evident
that the three ruling branches of that Department are in combination
to strip their colleagues, the state authorities, of the powers reserved
by them, and to exercise themselves all functions foreign and domestic."
The United States Supreme Court has gone to great
lengths to distinguish between intrastate and interstate commerce. In Coe v. Errol "5 the court laid down the test to be,
when did logs cut in New Hampshire for final shipment to
Maine commence their final movement for transportation
from the state of their origin to that of their destination.
and that moment they became interstate rather than intrastate commerce. Many other cases have been cited on this
point.3 6 Although some think that the Supreme Court has
departed from the rule in Gibbons v. Ogden, the recent case
of Chassaniolv. Greenwood,s7 decided in 1934, indicates no
departure from the position taken in Gibbons v. Ogden in
the construction of the Commerce Clause.
It is academic that our National Government is based upon the existence of individual states and the Constitution
116 U. S. 517 (1886).
Hammer v. Dagenhart, 247 U. S. 251 (1918); Mobile County v. Kimball,
102 U. S. 691 (1881); Kidd v. Pearson, 128 U. S. 1 (1888); DeTaware, Lackawanna & Western R. R. Co. v. Yurkonis, 238 U. S. 439 (1915).
87 291 U. S. 584 (1934).
85
36
FEDERAL CONTROL OF DEFAMATION BY RADIO
31
not only recognizes their rights but after providing that certain powers shall be delegated to Congress, provides that the
powers not so delegated to the United States nor prohibited
by it to the states are properly vested within the states themselves. That the Constitution is elastic and meant to cover
conditions as they arise is also academic. George Washington, the Father of our Country, has warned that if we are
to preserve our Government we must "resist with care the
spirit of innovation upon its principles, however specious the
pretexts. One method of assault may be to effect in the forms
of the Constitutional alterations which will impair the energy of the system, and thus to undermine what cannot be
directly overthrown." 8
It is, however, not in a "spirit of innovation" that we
venture to suggest federal control of defamation by radio.
Abundant authority is at hand to demonstrate that Congress has the sole power to regulate radio transmission based
on its constitutional power over interstate commerce.
9
"Radio communications are all interstate. This is so,
though they may be. intended only for intrastate transmission; and interstate transmission of such communications
may be seriously affected by communications intended only
for intrastate transmission." 40 Again, it was held in the
case of Station WBT v. Poulnot 41 that no state can tax radio
sets because such would be a burden upon interstate commerce and is so reserved to the Federal Government.
The theory upon which the Commerce Clause is constantly applied is that the Federal Government assumes control
in every instance where it will facilitate commerce between
Washington's Farewell Address.
Brown v. Houston, 114 U. S. 622 (1885). See, also, in this connection the
recent case of United States v. Gregg, 5 Fed. Supp. 848 (S.D. Texas, 1934),
in which District Judge Kennerly reviews the long line of cases in which the
courts recognize the power of Congress to regulate interstate commerce and the
cdses in which radio broadcasting was held to be such commerce.
40 Whiteburst v. Grimes, 21 Fed. (2d) 787 (E.D. Ky. 1927).
41 46 Fed. (2d) 671 (E. D. S. C. 1931).
08
39
NOTRE DAME LAWYER
the various states. It is already recognized that radio is interstate commerce and it remains but for us to recognize the
extension of this federal authority to defamation by radio.
The lawyer, the jurist and the legislator are by force of education and experience conservative in matters involving the
Constitution. "It is not legal-like to announce dogmatically
that radio.., is to be ticketed and labelled an instrumentality of interstate commerce without the formality and dignity
of a reasoned opinion accompanying the pronouncement.
Radio presents novel obstacles which defy removal by the
mere wave of the judicial hand. And while this analysis may
confirm and perhaps fortify first impressions, the analysis
should none the less be first made. Moreover, even if this
initial query results in the conclusion that Congress has
plenary power to regulate and control transmission, the proposed juristic journey may reveal other problems yet unsolved, problems which radiate, like wireless emissions themselves, from the main 'channel' of Constitutional Law....
The United States Supreme Court has used extremely
significant language as a demonstration of its complete willingness to extend the effect of the Commerce Clause of the
Constitution whenever circumstance or scientific advancement warrants such an extension. Thus we read in a decision "I in 1878:
"The powers thus granted [in the Commerce Clause] are not confined to the instrumentalities of commerce, or the postal service known
or in use when the Constitution was adopted, but they keep pace with
the progress of the country, and adapt themselves to the new developments of time and circumstances. They extend from the horse with its
rider to the stage-coach, from the sailing vessell to the steamboat,
from the coach and the steamboat to the railroad, and from the railroad to the telegraph, as these new agencies are successively brought
into use to meet the demands of increasing population and wealth."
Radio's complete contempt for state boundaries, bringing
it ultimately within the exclusive realm of federal jurisdic42
48
Kennedy, Radio and the Commerce Clause, 3 Am L. REV. (1932) 16, 19.
Pensacola Tel. Co. v. Western Union Tel. Co., 96 U. S.1, 9 (1878).
FEDERAL CONTROL OF DEFAMATION BY RADIO
33
tion, falls easily within one of these stated extensions of the
federal authority, Aerial alien that radio now is, with its
vagrant tendencies and no fixed domicile, is truly on trial
and its future cannot but make certain increasing litigation.
To forestall such multiplicity of suits of all kinds, to provide
for one uniform law which will assure uniform determination
of both civil and criminal responsibility, to provide one unified forum for such determination, in a word, to provide adequate federal control of defamation by radio seems a paramount necessity if we are to avoid the utter confusion which
will exist under any other system of meeting this important
problem. Indeed to refuse to act would be tantamount to
deliberately placing an additional burden upon interstate
commerce, which sooner or later must unquestionably demand the regulation and control of the central governmental
authority. It is utter folly to delay the remedy until the
situation has become so aggravated as 'to present increasingly difficult barriers in the path of a lasting solution.
Hesitancy in facing the clear-cut issue can find no basis
in the claim that the courts would be unwilling to hold such
an assumption of power by Congress a constitutional legislative act. In addition to the liberal language quoted above,
we find federal courts today both willing and anxious to
meet the exigencies of the day in regard to radio. Courts are
experiencing a new concept of liberality, not one which loses
complete sight of reason or common sense, but one which is
thoroughly in step with current conditions, which is, in a
word, in step with the times. That is amply illustrated in a
recent opinion of Judge Bowen of the United States District
Court of the Northern District of Washington:44
"Complainants and its newspaper members' facilities are not likely
to pass into disuse as some news communication instrumentalities have
in the past, but the service which complainants' facilities have rendered
to the past or may render to the future cannot be employed to hinder
the use of more modern means, including those of the defendant radio
44
Associated Press v. KVOS., Inc., 9 Fed. Supp. 279, 288 (W. D. Wash. 1934).
NOTRE DAME LAWYER
station which, in some respects, surpass complainants' facilities to an
extent comparable to the advantage of the airplane over those of the
railroad train."
ATTEMPED FEDERAL CONTROL
Congress has not been entirely unmindful of the need for
federal regulation of defamation by radio. There were two
things which prevented the passage of such an amendment
when the Radio Act of 1927 was passed by Congress: (1) a
parliamentary snarl with all the attendant confusion which
has seen the early demise of similar worthy and needed legislation and which is undoubtedly one of the much-regretted
weaknesses of our legislative system; and (2) a failure on
the part of Congress to understand the authority under
which such legislation clearly could be enacted.45 Inasmuch
as this particular phase of the subject wields such a powerful effect upon the problem we are discussing and since it
has been nowhere discussed fully in this connection, we
venture a rather exhaustive explanation of the circumstances
which surrounded the first and only attempt of Congress to
effect a federal control of defamation by radio, an attempt
which, unfortunately, was doomed to failure.
When Congress undertook to write the Radio Act of 1927
the original bills were sponsored in the House of Represent47
atives by Mr. White " and in the Senate by Mr. Dill,
father of modern radio legislation. The debate on the floor
of the House of Representatives, led by Congressman Blanton of Texas, is of the utmost interest in this consideration.
He it was who championed the first amendment looking to
federal control of defamation by radio. The full terms of
Mr. Blanton's amendment 48 are set out here as follows:
"Amendment offered by Mr. Blanton: Page 16, line 20, after the
word 'corporation,' strike out the period and insert a colon and add
45
46
47
CONG. REc. 2567 (Statement of Mr. Scott)
67 CONG. REc. 5479 (1926).
67 CONG. REC. 12350 (1926).
48
67 CONG. REc. 5372 (1926).
(1927).
FEDERAL CONTROL OF DEFAMATION BY RADIO
35
the following: 'Provided, That any person who, over any radio, shall,
affecting the character and standing of another, use derogatory language, which under the laws of any state into which such language is
transmitted constitutes (a) slander, or (b) libel were such language
in writing, shall constitute (1) the offense of criminal slander, which
may be prosecuted either in the state from which such languge was
broadcast, or in any state into which such language was transmitted,
and upon conviction, said offender shall be punished by a fine of not
less than $100 and not more than $1,000, or by confinement in jail
for a term not less than 30 days and not more than one year, or by
both such fine and imprisonment; and (2) civil slander, for which
the person aggrieved may make the offender respond in appropriate
damages, under the measure of damages prevailing in such state."
Mr. Lehlbach 9 requested Mr. Blanton to modify his amendment so as to make the law of the place where the utterance
takes place applicable instead of where the voice may be
heard, which Mr. Blanton refused to do, saying that he felt
that it was better to have it in specific form, constituting a
specific federal offense, with a specific punishment, than to
have it uncertain.
Mr. Lehlbach engaged in an interesting discussion with
Mr. Blanton regarding the possibility of the State of Indiana
making laws to punish one for a statement made in the State
of New Jersey. Mr. Blanton readily agreed that no state
could make such a law, but, he said,
"The Federal Government of the United States can, and it should
do it. Anyone in New Jersey, who for the purpose of injuring the good
reputation and standing of some one living in Indiana, should not be
permitted to hide behind the state line in New Jersey, and, by the
use of a powerful radio, transmit into and throughout the State of
Indiana false, slanderous and libelous statements which unjustly and
wantonly ruin the good name and standing of a citizen of Indiana, and
then escape punishment simply because the laws of New Jersey might
permit it. The lAws of Indiana might not permit such slander, yet
without a federal statute there would be no way on earth for the
Indiana citizen to hold the offender in New Jersey responsible . ...
One who deliberately, for the malicious purpose of injuring another,
transmits by radio false and slanderous language affecting the good
standing of another across state lines and into and throughout other
49
67 CONG. Rw.5572 (1926).
NOTRE DAME LAWYER
states, by federal statute ought to be punished, either in the place
where it was uttered or the place to which it is sent, whichever takes
jurisdiction of the man first."
Mr. Blanton, after stating that in his home state, Texas,
it was not slander for anyone verbally by word of mouth to
make false and slanderous charges about a man (although
otherwise for a woman) refused, at first to change his
amendment, at the request of Mr. Free, so as to make it an
offense only in the state where the statement was made;
later he consented to a change, but when Mr. Wingo objected to further amendment and to the entire amendment in
principle as first stated, the vote was asked for, the Committee of the Whole agreeing to the amendment by a vote
of 42 to 27.50 All this occurred only after Mr. Blanton had
used some persuasive argument in favor of his amendment,
saying, in part:
"This modem radio broadcasting is not a state matter, for it goes
into every state. It is bigger than any one state. There is one function
of the Federal Government-to protect the citizens of one state against
impositions unlawfully made upon them by citizens in other states,
and to provide a federal tribunal where such interstate controversies
may be heard .... This is one of the most important questions that
can affect the whole people of this Government .... The only way to
make such contemptible action a crime is to do it by federal statute,
by such an amendment as I am now proposing. And I sincerely hope
that my colleagues will adopt it. Is it not our intention to protect the
citizens of every state against slander and libel which may come from
others in other states into their own state about them? This is a national question and can only be settled by a federal law."
Mr. Blanton's amendment, it would appear up to this
point, was defeated principally because the majority of the
Congressmen thought that the common law and state statutes were sufficient to protect any individual. But how will
Congress feel toward this question now that experience
shows -that common law and state statutes are not sufficient to protect any individual? How will the Congress feel
in the face of mounting confusion and chaos in the inade50
67 CoNO. REc. 5573 (1926).
FEDERAL CONTROL OF DEFAMATION BY RADIO
37
quate regulation of defamation by radio by the various
states? How will Congress act when it perceives the crazyquilt of state statutes on libel and slander scattered about
in hopeless disarray, with conflicting and doubt-provoking
judicial determinations and interpretations further adding to
the bewilderment of those who would legitimately use the
radio for useful, lawful purposes, but who are constrained
to do so because of doubt as to the legal consequences and
of those also who have been damaged by such insidious defamation and who are powerless to look to any ordered authority for relief from intolerable situations?
But let us continue with the fate of legislation controlling
defamation by radio in the Senate and in the final adoption
of the conference report. We hasten to do this in spite of the
temptation to draw conclusions which mount steadily and
which point more and more to the necessity for assumption
of paramount federal control in this important field. When
the Senate bill emerged from considerations in the Commit.
tee on Interstate Commerce, it, too, contained provision for
federal control of defamation by radio. Senator Dill, in making public the committee report, described Section 7, which
is in point here, as follows:
"This section provides that no person shall utter any false, fraudulent, libelous or slanderous communication by radio, and violation of
this provision shall be punished by a fine of $1,000 or one year in jai,
or both."
Following this report to the Senate and adoption, the
bill went to a conference committee, was referred again to
both houses of Congress for action, and final action came
on January 27, 1927. The further point which is germaine
to our question here, and the regrettable point, be it said in
all sincerity, was that the so-called Blanton amendment, set
forth in full above, had been stricken out in conference, with
the explanation that the conferees doubted the legality of
NOTRE DAME LAWYER
the provision." I Even though this particular provision is admittedly not perfect in its construction, nor all encompassing in its scope, it would have been a start at least toward
exclusive federal control of defamation by radio. As the matter now stands, it was only by the barest margin that the
legislation missed enactment. If more definite provision had
been made as to where the right of action would attach, the
fate of the provision might have been happier. Had not Congress been bound to vote upon the conference bill in its entirety rather than upon individual sections, so that a separate vote on the Blanton amendment became quite impossible, the fate of the legislation might have been far different also. It does not seem logical to conclude that Congress
did not truly admit of the legality of such legislation, yet
the only concession to this stand can be found in Mr.
Scott's52 answer to Mr. Blanton, when asked why the
amendment was lost in conference:
"When we reached conference the question presented itself as to
the legality of such provision. I do not refer to the legality pf the right
of Congress to put it in, but as to where the right of action would
attach."
Perhaps we were unduly hopeful in expecting Congress to undertake to cover such a diversity of subjects well as it undertook to determine in the Radio Act of 1927, embroiled as it
was in bitter debates on the kind of regulatory body which
should assume control, anti-monopoly provisions, freedom of
speech and censorship questions and a host of other equally
annoying problems.
One thing which the congressional debates did establish,
however, is the incontrovertible fact that there is no such
51
68 CONo. REc. 2567 (19271).
52
68 CoNo. REc. 2567 (1927).
FEDERAL CONTROL OF DEFAMATION BY RADIO
39
thing as an "intrastate libel" by radio. Any defamation does,
or at least might, reach beyond state borders and, as such,
present a problem pressing for federal regulation. Congressman Blanton's thundering query,5" "Shall we let one state's
citizens defame or injure citizens of another state?" reverberates today even louder so that some day it must be answered by Congress. It would be difficult to imagine a more
clear-cut "federal question" than that we are discussing
here.
Joseph E. Keller.
Washington, D. C.
(To be continued.)
58 67 CoNo. Rzc. 5573 (1926).